Free Speech (pop) quiz Flashcards
What is Schenck v. U.S.?
(1919), Schenck helped pass out leaflets discouraging people from joining the draft. Scheneck was arrested and convicted under the Espionage Act. (did this violate his 1st amen right to speech?) The SC unanimously sided with the U.S, Justice Holmes wrote the majority opinion which held that the Espionage Act did not violate the 1st amen and was an appropriate exercise of Congress’ wartime authority. Also established the Clear and Present danger test: the 1st amen does not protect speech that creates a clear and present danger to public saftey or national security. (fire in a crowded theater was ex. used)
What happened in 303 Creative LLC v. Elenis?
(2023), a wedding website designer said that the Colorado AntiDiscrimination Act could be used to force her to make websites for same-sex couples which would compel her to express a message she disagreed with. The SC sided with her in a 6-3 decision. Majority authored by Justice Gorsuch. Said that wedding websites are expressive content. Which means a business owner can refuse service to certain customers based on their protected characteristic when creating expressive content. In the dissenting opinion Justice Sotomayer said that this would allow discrimination against gay people, and that the law there overturning doesn’t actually compel speech
What is Gitlow v. NY?
(1925) Gitlow was arrested for distributing a leaflet that called for the establishment of socialism through strikes and class action of any form. The SC sided with NY in a 7-2 decision. The majority opinion was written by Justice Sanford. Citing Schenck the Court reasoned the government could punish speech that threatens its basic existence because of the national security implications. This also established the principle of incorporation, which meant that rights guaranteed under the Bill of Rights of the U.S. Constitution could be extended to the states, under the 14th Amendment’s guarantee of due process and equal protection. In a dissenting opinion Justice Holmes held that Gitlow had not violated the clear and present danger test. Since Gitlow’s call to action was abstract and would not resonate with a large number of people, and that there was not sufficient imminence to warrant punishing the speech.
What is Brandenburg v. OH
(1969) Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio law that prohibited public speech that advocated for various illegal activities. In a 8-0 decision the court sided with Brandenburg. two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The OH law ignored if that advocacy would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. In a concurring opinion Justice Douglas said that he thought a clear and present danger test was too broad and that almost all speech is protected by the 1st amen
What is U.S. v. O’Brien
(1968) O’Brien was convicted of burning a draft card, in violation of a statute punishing one who “knowingly destroys” such a card. In a 7-1 decision the court upheld the law and O’Briens conviction, Chief Justice Warren gave the majority opinion. The government’s interest in maintaining an effective draft system outweighed the individual’s right to burn draft cards, and the law was narrowly tailored towards the govs interests. This case also established the O’Brien test which was about if government regulations that impact symbolic speech are justified using four parts (constitutional, furthers gov interest, gov interest is not related to suppressing free expression, and restriction on 1st amen freedoms must be no more than is necessary to achieve the government’s interest). Justice Douglas dissented and said that the government’s interest in draft cards was only valid during a declared war, and that they should consider whether peacetime conscription was constitutional.
What is TX v. Johnson?
(1989) Johnson burned an American flag in protest of the Reagan administration’s policies. No one was physically injured or threatened with injury; however many witnesses took offense. He was arrested. In a 5-4 decision the SC sided with Johnson. Majority opinion was written by Justice Brennan. 1st amen protects symbolic speech, Johnsons actions being political further protects them, gov can’t restrict speech just because its socially reprehensible. In a dissenting opinion Justice Rehnquist said that The flag has a unique meaning in American tradition and determined that Johnson’s actions were not essential to the ideas he wished to express, and that the flag is not just a political thing and has a special place in US culture
what is RAV v. St. Paul?
(1992) Some teenagers burned a cross on the lawn of the only African-American family in their neighborhood. They were arrested under the St. Paul Bias-Motivated Crime Ordinance. The Supreme Court unanimously declared that the Minnesota law was unconstitutional, but they could not agree on why. Justice Scalia’s majority opinion said that the 1st amen prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed, Gov can’t side with one side of the debate. Justice White concurred but disagreed with some of Scalias logic, he said that he would have overturned the law because it was overbroad and therefore violated the 1st amen
what is Janus v. AFSCME
(2018) Under Illinois law if you’re not a part of a union you have to pay an agency fee. Mark Janus challenged that by saying if he was forced to pay the agency fee he was being forced to agree with/support the political messages of the union which he did not agree with. The SC sided with Janus by 5-4. Justice Alito gave the majority opinion. He said that forcing Janus to pay the fee does forcesJanus to have to support issues he doesn’t support, which violates his 1st amen rights, said that in the past SC has affirmed that speech includes speaking freely or not speaking at all. this decision overturned the case Abood v. Detroit Bd. of Ed. Justice Kagan dissented and said that in the mj opinion there are no special justifications for overturning Abood, that Abood has proved workable/there haven’t been any issues and that this decision is a clear example of judicial disruption.
What is Citizens United v. FEC?
(2010) CU tried to stop the FEC from apply the BCRA ( a act that attempts to regulate big money campaign contributions) to a movie they made about Hillary Clinton which talks about whether or not she’d make a good president. The court ruled in a 5-4 decision for Citizens United. The majority opinion was written by Justice Kennedy. It said that under the 1st amen corporate funding of INDEPENDENT political stuff cannot be limited. Political speech is important/protected and thats not changed if its coming from a corporation. Court upheld that the BCRA’s disclosure requirements when applied to the movie were const. and that the ban on direct donations to candidates from corps/unions was cool. Justice Stevens dissented and said that corporations are not members of society and that there are compelling governmental interests to curb corporations’ ability to spend money during local and national elections. (corporations are not individuals)
What is Chaplinsky v. NH?
(1942) Chaplinsky proselytized on the streets trying to get people to join the Jehovah’s Witnesses. He condemned Catholicism and refused to salute the flag. He called a police officer a damn fascist and a racketeer. He was then arrested. The SC unanimously ruled that Chaplinsky was constitutionally convicted. Justice Murphy delivered the majority opinion, what Chap said wasn’t religious, what he said falls under fighting words which are words that just by saying them incite violence/breach the peace. The gov can outlaw/restrict fighting words.
What is Cohen v. California?
(1971) Cohen was wearing a jacket in a courthouse that said Fuck the Draft in protest of the Vietnam War. He was arrested. The SC ruled for Cohen by 6-3. The majority opinion was written by Justice Harlan. It said that the CA law was very broad, Cohens jacket wasn’t directed at a specific person in the courthouse, no evidence that anyone who saw the jacket reacted violently or that that was Cohens intention, because the state doesn’t have a more particularized and compelling reason for its actions/the law Cohens cool. Justice Blackmun dissented. He said that Cohens actions/jacket is conduct not speech and that under Chaplinsky the CA law is fine
What is NYT v. Sullivan?
(1964) NYT ran a ad that criticisized the Alabama police (didn’t name anyone), it had some minor factual inaccuracies. Sullivan sued for libel and got paid damages, it went to the SC. The SC unanimously sided with NYT (reversing the damages). Justice Brennan wrote the majority opinion. It said that when a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel, they have to show “actual malice” which means it was made with knowledge of or reckless disregard for its falsity. Justice Black wrote a concurring opinion saying that the use of malice is to abstract of a standard to use for free speech.
What is Roth v. U.S.?
(1957) Roth made a magazine that had photos of naked women in it. He was arrested. In a 6-3 decision the SC sided with the U.S. Majority opinion was written by Justice Brennan. It said that obscenity was not protected by the 1st amen. test to determine obscenity is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to lustful interest. Justice Harlan dissented and said that obscenity was the responsibility of the states to define, rather than the responsibility of the federal government
What is Miller v. CA?
(1973) Miller sold adult books and films and sent out brochures for them. He was arrested when a couple took offense. 5-4 decision for Miller, majority opinion was written by Justice Burger. It said that obscene material are not protected by the 1st amen but established the Miller test: ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the lustful interest, work depicts or describes, in a patently offensive way, sexual conduct (as defined by state law), whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In a dissenting opinion Justice Brennan said that obscenity is very difficult to define but that regulating it to keep it from unconsenting adults and juveniles is fine.
What is Brown v. Entertainment Merchants Association?
(2011) CA had a law that banned kids from buying violent video games (if a parent/family member gave them it it was fine). By a 7-2 vote, the Court struck down California’s law. Justice Scalia wrote the majority opinion. It said video games communicate ideas so there protected by the 1st amen, there wasn’t evidence of a compelling gov interest. In a dissenting opinion Justice Breyer said that the CA law was ok because a valid interpretation of the 1st amen allowed banning kids from buying pornographic magazines then it should allow banning them from buying violent video games where they brutally kill people.
What is Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council?
(1976) the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. In a 7-to-1 opinion the court sided with VCCC. Justice Blackmun delivered the majority opinion. It said that commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech. The state could regulate the speech (make sure it was true and not too misleading) but it could not ban it entirely. Justice Rehnquists dissent said that this decision could allow misleading info, it could allow ads for stuff like alcohol, it would make regulating ads harder for states, free speech primarily protects political, social, and other public issues not what kind of shampoo or alcohol someone should buy
